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Yearbook of International Sports Arbitration 2016 pp 197–238Cite as

CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016

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Part of the book series: Yearbook of International Sports Arbitration ((YISA))

Abstract

In the remarkable CAS award WADA v. Bellchambers (better known as the Essendon case), WADA collectively prosecuted 34 Australian football players for the “Use” of a Prohibited Substance. This ground-breaking case foreshadows the events that would follow later in 2016, most notably the Russian saga, events that would cumulatively highlight potential shortcomings of the 2015 WADA Code in dealing with systematic—as opposed to individual—failures. This commentary identifies and discusses the many ways that the CAS panel adapted the “normal” legal mechanisms for analysing anti-doping rule violations—from the evaluation of the evidence to the assessment of the Australian football players’ level of fault—to meet the uncommon circumstances of this case. These adaptations push the limits of the 2015 WADA Code, raising questions as to the broader implications of this case. While one might wonder whether the unique circumstances will limit the general applicability of the CAS panel’s reasoning, it seems clear that at a minimum it will serve as one of the early signals to anti-doping policy makers and regulators that more should be done in the upcoming revision of the WADA Code to better address systematic failures.

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Notes

  1. 1.

    See e.g., CAS 2004/O/649, United States Anti-Doping Agency v. Gaines, Award of 13 December 2005 and CAS 2004/O/645, United States Anti-Doping Agency v. Tim Montgomery, Award of 13 December 2005.

  2. 2.

    Report on Proceedings under the World Anti-Doping Code and the USADA Protocol, United States Anti-Doping Agency v. Lance Armstrong, Reasoned Decision of the United States Anti-Doping Agency on Disqualification and Ineligibility, Decision of 10 October 2012.

  3. 3.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, paras 6–19.

  4. 4.

    Ibid., para 22.

  5. 5.

    Ibid., para 23.

  6. 6.

    Ibid., para 22.

  7. 7.

    Ibid., para 27.

  8. 8.

    Id.

  9. 9.

    Ibid., para 31.

  10. 10.

    Ibid., para 32. It has also been suggested that the investigations were prompted by the Australian Crime Commission’s notorious report, “Organised Crime and Drugs in Sport”. See Jack Anderson, Doping, Sport and the Law: A Day in the Federal Court, Essendon Football Club v ASADA (2014), 3 October 2014. https://www.lawinsport.com/articles/item/doping-sport-and-the-law-a-day-in-the-federal-court-essendon-football-club-v-asada-2014. Accessed 9 February 2016.

  11. 11.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 32.

  12. 12.

    Ibid., para 33.

  13. 13.

    Id.

  14. 14.

    Ibid., para 35.

  15. 15.

    Crameri & Prismall did not state a position as to the participation of ASADA, ibid., para 41.

  16. 16.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, paras 87–88.

  17. 17.

    Ibid., para 88.

  18. 18.

    Ibid., para 92.

  19. 19.

    Ibid., para 91, however see para 47 that makes a somewhat ambiguous reference to the 32 Players’ “initial objection to the content and jurisdiction/scope of WADA’s appeal brief,” the contents of this initial objection were not discussed in the award.

  20. 20.

    Ibid., para 91.

  21. 21.

    Ibid., para 97.

  22. 22.

    Ibid., para 98.

  23. 23.

    Id.

  24. 24.

    As a ready example, and as already mentioned, in the Essendon case the CAS panel referenced an obiter dictum in the B. v. FINA award to support the notion that the “comfortable satisfaction” standard does not require the Anti-Doping Organization to eliminate all possibilities that might point to an Athlete’s innocence.

  25. 25.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 91.

  26. 26.

    Chapter 12 PILA governs international arbitration proceedings with seat in Switzerland.

  27. 27.

    SFT, 4A_428/2011, para 4.1; SFT, 4A_424/2008, para 3.

  28. 28.

    SFT, 4A_424/2008, para 3.

  29. 29.

    See, for a summary of the debate, CAS 2014/A/3496, Anti-Doping Autoriteit Nederland v. XX, Award of 6 March 2015.

  30. 30.

    See, e.g. CAS 2006/A/1206, Zivadinovic v, Iraqi Football Association, Award of 2 April 2007, para 31 (“the Panel holds that CAS has no jurisdiction to hear a claim brought by way of appeal from a decision issued by a disciplinary body of FIFA against a subject that was not a party to the FIFA disciplinary proceedings, has no standing to be sued, and is not directly affected by the decision appealed from”).

  31. 31.

    See, e.g. CAS 2007/A/1329, Chiapas FC v. Cricuma Esporte Club, Award of 5 December 2007, para 17 (both named respondents lacked standing to be sued, therefore the appeal was declared “inadmissible ratione personae”); See also CAS 2008/A/1486, WADA v. CONI & Tagliaferri, Award of 5 February 2009, para 7.4. In this case, the CAS panel discussed the standing to be sued of one of the respondents named in the appeal in the context of the admissibility of the appeal.

  32. 32.

    See e.g. the CAS panel’s discussion in CAS 2011/A/2474, Urso & Ercolani Casadei v. IOC, Award of 29 June 2012, para 64 (“Although it is not evident that the procedural terminology used in English (linked to common law concepts of admissibility) and French in connection with this issue exactly correspond, according to the SFT both “standing to sue” and “standing to be sued” are issues which relate to the merits of the case, and would therefore lead to the dismissal of the appeal, not to its inadmissibility (126 III 59 c. 1a; 114 II 345 c. 3a)”); see, with reference to the SFT case law, CAS 2014/A/3474, Clube de Regatas do Flamengo v. CBF & STJD, Award of 5 October 2015, paras 58–59.

  33. 33.

    Rigozzi and Hasler 2013, ad Article R47, para 22; see also Mavromati and Reeb 2015, ad Article R27, paras 81 & 82.

  34. 34.

    CAS 2011/A/2474, Urso & Ercolani Casadei v. IOC, Award of 29 June 2012, para 183 (“This does not mean that the Panel has discussed the question of whether, had the Appellants been able to convince it that it had jurisdiction ratione materiae and ratione personae in relation with their case, they would have had a standing to sue, in other words, an underlying right capable of being protected”).

  35. 35.

    Ibid., paras 65 and 85.

  36. 36.

    Rigozzi and Hasler 2013, ad Article R47, para 22; see also Mavromati and Reeb 2015, ad Article R27, paras 81 & 82.

  37. 37.

    One does wonder to what the CAS panel was precisely referring when it mentioned the “various objections” to WADA’s appeal brief, including its “initial objection” to its content and jurisdiction/scope.” CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, paras 47–48.

  38. 38.

    In fact, the Essendon award contains an explicit reminder of these principles with respect to the question of the applicable law. Ibid., para 97.

  39. 39.

    For a recent example, see CAS 2016/O/4464, IAAF v. Ekaterina Sharmina, Award of 29 November 2016, para 78.

  40. 40.

    See e.g., CAS 2011/A/2612, Liao Hui v. IWF, Award of 23 July 2012, para 98 quoting CAS 2008/A/1718, IAAF v. Yegorova, Award of 18 November 2009, para 61.

  41. 41.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 114.

  42. 42.

    Ibid., para 114. As a matter of precision, footnote 35 of the 2015 AFL Anti-Doping Code does not provide that an appeal to the CAS is de novo, it provides that “Appeal Board proceedings are de novo. Prior proceedings do not limit the evidence or carry weight in the hearing before the Appeal Board.” This language is transposed from the Comment to Article 13.1.2 of the WADA Code, except in the WADA Code version the words “Appeal Board” are replaced with CAS.

  43. 43.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 114.

  44. 44.

    Id. Article 182 of the PILA, para 1: “The parties may, directly or by reference to arbitration rules, determine the arbitral procedure; they may also submit it to a procedural law of their choice”. Article 182 of the SPILA, para 2: “If the parties have not decided the procedure, the arbitral tribunal shall, to the extent needed, determine the procedure either directly, or by reference to a law or to arbitration rules” (free translation by the authors of “Si les parties n'ont pas réglé la procédure, celle-ci sera, au besoin, fixée par le tribunal arbitral, soit directement, soit par référence à une loi ou à un règlement d'arbitrage”).

  45. 45.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 115.

  46. 46.

    Ibid., para 114.

  47. 47.

    Swiss Federal Tribunal, decision of 27 September 2016, 4A_102/2016.

  48. 48.

    For an overview of the process and rationales behind the introduction of Articles 13.1.1 and 13.1.2 in the 2015 WADA Code, see Rigozzi et al. 2013, paras 201–211.

  49. 49.

    Swiss Federal Tribunal, decision of 27 September 2016, 4A_102/2016, para 3.4.

  50. 50.

    Swiss Federal Tribunal, decision of 27 September 2016, 4A_102/2016, para 3.3.

  51. 51.

    “[…] this Panel subscribes to the CAS jurisprudence under which the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence”. In particular, the CAS panel made reference to TAS 2004/A/547, FC Zürich v/Olympique Club de Khourigba, §§ 66, 124; CAS 2004/A/690, Hipperdinger v/ATP Tour, Inc., Award of 24 March 2005, para 86; CAS 2005/A/830, Squizzato v/FINA, Award of 15 July 2005, para 10.26; CAS 2005/C/976 & 986, FIFA &WADA, Award of 21 April 2006, para 143; CAS 2006/A/1175, Daniute v/IDSF, Award of 26 June 2007, para 90; CAS 2007/A/1217, Feyenoord v/UEFA, Award of 20 April 2007, para 12.4.

  52. 52.

    CAS 2004/A/690, Hipperdinger v/ATP Tour, Award of 24 March 2005, para 86, referencing N., J. and others v. Fédération Internationale de natation (FINA), Tribunal fédéral, 1re Cour civile, 31 March 1999 in Reeb 2002, pp. 767–774, 771.

  53. 53.

    In particular, the SFT decision referenced in the Hipperdinger CAS award (CAS 2004/A/690, Hipperdinger v. ATP Tour, Award of 24 March 2005, at para 86, states that question of the proportionality of a sanction only arises from the perspective of a violation of public policy (in the sense of Article 190(2)(e)) if the arbitration award constitutes an extremely serious and totally disproportionate infringement of one’s personality rights. (“La question de la proportionnalité de la sanction ne pourrait dès lors se poser, sous l'angle restreint de l'incompatibilité avec l'ordre public, que si la sentence arbitrale consacrait une atteinte à la personnalité qui soit extrêmement grave et hors de toute proportion avec le comportement qu'elle sanctionne”.).

  54. 54.

    See e.g., CAS 2012/A/2804, Kutrovsky v. ITF, Award of 3 October 2012; CAS 2016/A/4643, Sharapova v. International Tennis Federation, Award of 30 September 2016, para 63, and in a non-doping context, CAS 2016/A/4474, Platini v. FIFA, Award of 16 September 2016, paras 223–225.

  55. 55.

    See e.g. (in a non-doping context) CAS 2012/A/3031, Katusha Management SA v. UCI, Award of 2 May 2013 that “accepted” the dictum in the Hardy case, i.e. that a CAS panel can only review the measure of a sanction when it is “evidently and grossly disproportionate to the offence”, but interpreted it as follows: “While not excluding, or limiting, its power to review the facts and the law involved in the dispute heard (pursuant to Article R57 of the Code), a CAS panel can decide, in specific and appropriate circumstances, not to exercise the power it indisputably enjoys, and will defer to the discretion exercised by the internal body of an association.” A similar approach was adopted by the CAS panel in CAS 2016/A/4643, Sharapova v. ITF, Award of 30 September 2016, in which the CAS panel interpreted the Hardy dictum as “far from excluding or limiting the power of a CAS Panel to review the facts and the law” rather, meaning that a CAS panel “would not easily ‘tinker’ with a well-reasoned sanction” quoting CAS 2011/A/2518, Kendrick v. International Tennis Federation, Award of 10 November 2011, para 10.7, which in turn quoted CAS 2010/A/2283, Bucci v. FEI, Award of 23 June 2011, para 14.36.

  56. 56.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 114.

  57. 57.

    Id.

  58. 58.

    Id.

  59. 59.

    CAS 2008/A/1700 & 1710, DRV v. FEI & Ahlmann, Ahlmann v. FEI, Award of 30 April 2009, para 66.

  60. 60.

    In particular, in CAS 2012/A/3031, Katusha Management SA v. UCI, Award of 2 May 2013, paras 67–68 in which the CAS panel considered to the extent that arbitration at the CAS must provide “at least the same level of protection of his/her substantive rights that he or she could obtain before a state court” a significant deviation from its power of review may be seen as an overly intrusive restriction on an Athlete’s to justice. Taking this reasoning one step further, the Katusha panel concluded that “the unrestricted scope of review of the CAS panel as provided under Article R57 of the CAS Code may be validly limited to the same standard of review as the standard provided by a State court proceedings.”.

  61. 61.

    In particular, the CAS panel in Katusha Management SA v. UCI allowed the parties to derogate somewhat from the CAS’ de novo standard of review. See, e.g. CAS 2012/A/3031, Katusha Management SA v. UCI, Award of 2 May 2013, paras 67–68 in which the CAS panel considered to the extent that arbitration at the CAS must provide “at least the same level of protection of his/her substantive rights that he or she could obtain before a state court” a significant deviation from its power of review may be seen as an overly intrusive restriction on an Athlete’s to justice. Taking this reasoning one step further, the Katusha panel concluded that “the unrestricted scope of review of the CAS panel as provided under Article R57 of the CAS Code may be validly limited to the same standard of review as the standard provided by a State court proceedings.”.

  62. 62.

    The provisions of Article 182 PILA (paras 1 & 2) called by the panel in additional support of its position merely provide that parties are free to determine the procedural rules applying to their arbitration, including through a set of institutional arbitration rules. Its relevance for the issue at stake is thus equally unclear.

  63. 63.

    Swiss Federal Tribunal, decision of 27 September 2016, 4A_102/2016, para 3.4.

  64. 64.

    Ibid., para 3.4.

  65. 65.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 114.

  66. 66.

    This type of situation may arise, for example, where the initial hearing panel denied its jurisdiction on the matter, the question then being whether the CAS panel may still render a decision on the merits if the initial hearing panel never went into the merits of the case. Another such situation may arise when the CAS panel is asked to render a decision based on a qualification of the anti-doping rule violation within the catalogue of Article 2 of the WADA Code different from the one that the Athlete was charged with in the initial hearing process. See e.g. CAS 2011/A/2566, Veerpalu v FIS, Award of 25 March 2013, paras 27, 80, & 207 et seq., in which the Anti-Doping Organization originally sought a violation under Article 2.1, but alternatively argued that since the Athlete admitted to using recombinant human growth hormone, the CAS panel was in a position to confirm the anti-doping rule violation found by the International Ski Federation hearing panel.

  67. 67.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 57.

  68. 68.

    Ibid., para 117.

  69. 69.

    Ibid., para 118.

  70. 70.

    Ibid., para 116.

  71. 71.

    Id., referencing Mavromati and Reeb 2015, ad Article R57, para 46 on this point.

  72. 72.

    It should be noted that a preliminary decision made by the CAS panel denied the 32 Players’ request to explore further the “interaction and role of WADA’s counsel with ASADA, WADA, and the Cologne laboratory during the underlying proceeding” (para 64), which presumably was requested for the purpose of determining whether the type of abusive manoeuvers it considered relevant were present in this case.

  73. 73.

    Generally, Rigozzi and Quinn 2014; specifically with respect to expert evidence, see Viret 2016, pp. 169 & 544/545.

  74. 74.

    Rigozzi and Quinn 2014, p. 4; Kaufmann-Kohler and Rigozzi 2015, para 6.02.

  75. 75.

    Not to be confused with Article R56, which provides that CAS panels may, in certain circumstances, allow the parties to supplement their submission after the filing of the written submission. “Unless the parties agree otherwise or the President of the Panel orders otherwise on the basis of exceptional circumstances, the parties shall not be authorized to supplement or amend their requests or their argument, to produce new exhibits, or to specify further evidence on which they intend to rely after the submission of the appeal brief and of the answer”. At para 47, the award seems to indicate that the panel further accepted evidence after the submission of WADA’s appeal brief, in spite of the procedural limits in Article R51 of the CAS Code. The award does not go into the reasons for allowing additional evidence and whether such evidence was allowed in accordance with Article R56 of the CAS Code.

  76. 76.

    The Essendon panel explicitly referenced Mavromati and Reeb 2015, pp. 505–508.

  77. 77.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 64.

  78. 78.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 102–103.

  79. 79.

    Ibid., para 103.

  80. 80.

    Ibid., para 103.

  81. 81.

    Ibid., para 105(i), referencing the USADA v. Montgomery award, at paras 56 and 3, with the serious claims being the participation in a “wide-ranging doping conspiracy”.

  82. 82.

    Ibid., para 105(ii), referencing in particular CAS 98/211, B. v. FINA, Award of 7 June 1999.

  83. 83.

    Ibid., paras 107–108.

  84. 84.

    Ibid., para 107.

  85. 85.

    Ibid., para 109. No citation provided in the award.

  86. 86.

    Ibid., para 119.

  87. 87.

    Id.

  88. 88.

    Ibid., para 19.

  89. 89.

    Ibid., para 120(iv).

  90. 90.

    Ibid., para 129.

  91. 91.

    Some of the key indications included: (i) Text message from Mr. Dank asking for “Thymosin 2 mg/ml” to Mr. Alavi (ibid., para 120(ii)), a compounding chemist at Como (ibid., para 13), a pharmacy alleged, but not established to be Mr. Dank’s source of TB-4 (ibid., para 141); (ii) The mention of “Thymosin” on the consent form that all Players signed (ibid., para 120(iii)); (iii) Six of the Players stating that Mr. Dank had said that he was injecting “Thymosin” (ibid., para 120(vii)); and (iv) Two of Players stating that they saw the word “Thymosin” on the vials containing the substance with which they were injected (ibid., para 120(viii)).

  92. 92.

    Ibid., para 120(xi).

  93. 93.

    Ibid., para 120(xii).

  94. 94.

    Ibid., para 131. See also ibid., para 120(ix), specifically “TB-4 is accepted to aid recovery and repair tissue (whereas Thymosin Alpha is used to boost [the] immune system.)”

  95. 95.

    Ibid., para 120(i). The panel acknowledged that this finding of the Australian Administrative Appeals Tribunal was currently under appeal.

  96. 96.

    Ibid., para 120(iii).

  97. 97.

    Ibid., para 120(x). Note, this statement, and specifically the implication that it was established that Mr. Dank sought to access TB-4 is difficult to square with the panel’s conclusion that the source of the TB-4 was not established. More precisely, this is exactly the situation the panel accepted at para 141 when it stated that Mr. Dank “might have used the TB-4 compounded at Como for all or any of the three purposes canvassed on both sides, or he might have used TB-4 in the Essendon program from some entirely different source.”

  98. 98.

    Ibid., para 131.

  99. 99.

    Ibid., para 132.

  100. 100.

    Ibid., para 131.

  101. 101.

    Ibid., para 131.

  102. 102.

    Ibid., para 123, see also para 120(xv).

  103. 103.

    See e.g., ibid., paras 120(xiv) & 121.

  104. 104.

    The CAS panel called into question the Player’s credibility, e.g., in their (apparently faulty) recollection of whether Mr. Dank attended away games, ibid., para 120(xvi), and on other occasions, made observations such as “their statements were replete with qualification”, ibid., para 129(iii).

  105. 105.

    Ibid., para 124. This was described by the CAS panel as a “barely visible thread” rather than a strand.

  106. 106.

    Ibid., para 137.

  107. 107.

    Ibid., para 140.

  108. 108.

    Ibid., para 142.

  109. 109.

    For the notion that the scientific evidence was not necessary, see ibid., para 144.

  110. 110.

    Ibid., para 145.

  111. 111.

    Ibid., para 149.

  112. 112.

    Ibid., para 144.

  113. 113.

    Ibid., para 151.

  114. 114.

    Ibid., para 125.

  115. 115.

    Ibid., para 126.

  116. 116.

    Ibid., para 126.

  117. 117.

    Ibid., para 126.

  118. 118.

    Ibid., para 129. The CAS panel listed a variety of factors supporting this conclusion, mostly appearing aimed at establishing that the Players payed little attention to what substances they were given and offered practically no concrete details surrounding the frequency and timing of injections that the Players received, such as the fact the Players kept no records (para 129(a)), the fact that the Players were imprecise as to this fact in their testimony (para 129(iv)), and the complete failure of the Players to mention the injections on their Doping Control Forms (para 129(vii)).

  119. 119.

    Ibid., para 129(viii). Curiously, the CAS panel offered as proof of this the case of one particular player who had testified that he was receiving “Melotonan”, but admittedly experienced “no tanning effects”, leaving one to wonder whether “Melotonan” in the CAS award referred to “Melotonin” or “Melanotan.”.

  120. 120.

    See in particular in the context of Athlete Biological Passport cases: CAS 2009/A/1912-13, Pechstein, DESG v ISU, award of 25 November 2009, para 125, the CAS panel reiterated that even in “serious forms of doping” the standard applied is not the criminal law one; CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.7; for an overview of similar CAS findings in disciplinary corruption cases, see Barak and Koolaard 2014, p. 12 et seq.; see, in particular, CAS 2010/A/2267 Football Club Metalist et al. v. FFU, para 734.

  121. 121.

    David 2013, p. 204.

  122. 122.

    Ibid., p. 133.

  123. 123.

    CAS 2011/A/2384, UCI v. Contador, Award of 6 February 2012.

  124. 124.

    Viret 2016, p. 99.

  125. 125.

    At no point was it assessed whether TB-4 was to be regarded as a Prohibited Substance under the WADA Prohibited List at the time of the material facts, even though this element was mentioned as one of the prerequisites for a violation to be established in WADA’s submissions. Of note, WADA described the element that “Thymosin Beta-4 is a prohibited substance” as an element of fact, which is inaccurate. Whether TB-4 is to be characterized as a Prohibited Substance under the WADA Prohibited List is a matter of legal appreciation by the CAS panel (see Viret 2016, p. 467).

  126. 126.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 131.

  127. 127.

    This could occur to analysis of syringes or bottles retrieved at the Athlete’s premises, for example. By contrast, Athletes who Use a product in the erroneous belief that its content is prohibited should not be found to commit an anti-doping rule violation. If the conduct is deliberate, one could, at most, contemplate a violation of Attempted Use.

  128. 128.

    CAS 2004/O/645, USADA v. Montgomery, Award of 13 December 2005, para 45. “The Panel is unanimously of the view that Mr. Montgomery in fact admitted his use of prohibited substances to Ms. White, as discussed in more detail below, on which basis alone the Panel can and does find him guilty of a doping offence.”

  129. 129.

    CAS 2004/O/645, USADA v. Montgomery, Award of 13 December 2005, para 4.

  130. 130.

    CAS 2004/O/645, USADA v. Montgomery, Award of 13 December 2005, para 43.

  131. 131.

    The word “Thymosin” does not necessarily refer to a Prohibited Substance given that there are (according to the award) non-Prohibited types of Thymosin.

  132. 132.

    CAS 2004/A/651, French v. Cycling Australia, Award of 11 July 2005. “The Panel finds that an admission to use of Testicomp does not amount to an admission that there has been use of a prohibited substance unless the product used is shown by chemical analysis to contain that which it purports to contain by its product leaflet. The contents itself must be proved to have contained the prohibited substance and that was not proved. An admission of use of Testicomp does not factually prove the fact of what it is that has been used and that it contains the substance stated on the label.”

  133. 133.

    CAS 2004/A/651, French v. Cycling Australia, Award of 11 July 2005. “The Panel finds that an admission to use of Testicomp does not amount to an admission that there has been use of a prohibited substance unless the product used is shown by chemical analysis to contain that which it purports to contain by its product leaflet. The contents itself must be proved to have contained the prohibited substance and that was not proved. An admission of use of Testicomp does not factually prove the fact of what it is that has been used and that it contains the substance stated on the label.”

  134. 134.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 119.

  135. 135.

    Ibid., para 126.

  136. 136.

    An additional argument invoked by the CAS panel is the club’s successful results during the start of the relevant season, which the CAS panel seemed to perceive as evidence that the players had indeed taken TB-4 and that it was working (at para 124). Even though the CAS panel was mindful to characterize this aspect as “a barely visible thread rather than a strand”, it is questionable whether this argument should even have its place in a CAS award, especially since there was no finding of the CAS panel that TB-4 has performance-enhancing effects, much less that such effects could be responsible for a club’ success. This type of argument is not only unfounded but also dangerous, as it introduces an element related to the presumed impact of the intake of a substance in the particular matter, which is completely alien to the functioning of the WADA Code regime.

  137. 137.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 164. Under Swiss law, a reasoning that disregard individual causality chains would not be admissible for criminal liability: if there are two prohibited conducts that could potentially have contributed to an outcome, but it cannot be established which of the two led to the outcome, none of the potential perpetrators can be punished. For civil liability, a joint liability in tort in the absence of an established causal link is only accepted if it can be shown that the perpetrators acted out of a common intention, so that it is irrelevant which of the acts ultimately triggered the outcome. Assuming that these situations could provide apt analogies, in neither case could the facts of the matter have led to a personal liability of each player in the Essendon matter, who were not found to have “consciously submitted to injections of what they knew to be a prohibited substance”.

  138. 138.

    CAS 2009/A/1817, WADA & FIFA v. Cyprus Football Association, et al., Award of 26 October 2010. This case was mentioned at CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 114.

  139. 139.

    Ibid., para 14.

  140. 140.

    Id.

  141. 141.

    Ibid., para 163.

  142. 142.

    Ibid., para 202.

  143. 143.

    Ibid., para 199. As support for this conclusion, the CAS panel pointed to the lack of Adverse Analytical Findings in the other Players (Id.), and the possibility that the pills administered by the assistant coach to the other players were caffeine pills that had been contaminated with steroids (rather than steroid pills) (ibid., para 201).

  144. 144.

    See e.g. CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 126: “For Mr Dank to have arbitrarily omitted to give any player injection of Thymosin would have made no sense”; at para 131: “Mr Dank devised a program whose efficacy depended, inter alia, on the properties of TB-4. Therefore, the Players consensual use of ‘Thymosin’ in the context of Mr. Dank’s program could have only been TB-4, as no other available form of Thymosin would have provided Mr. Dank’s desired results.”

  145. 145.

    Ibid., paras 152 & 166.

  146. 146.

    CAS 2013/A/3327, Cilic v. International Tennis Federation, Award of 11 April 2014; and CAS 2005/A/872, UCI v. Fernandez, Award of 30 January 2006.

  147. 147.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 153.

  148. 148.

    CAS 2013/A/3327, Cilic v. International Tennis Federation, Award of 11 April 2014, para 70. Note, this part of the Cilic award was not reproduced in the Essendon award, and was likely left out to avoid confusion with the labelling of one of the categories as “significant.”.

  149. 149.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 153 quoting CAS 2013/A/3327, Cilic v. International Tennis Federation, Award of 11 April 2014, para 71.

  150. 150.

    Ibid., para 153 quoting CAS 2013/A/3327, Cilic v. International Tennis Federation, Award of 11 April 2014, para 74.

  151. 151.

    Ibid., para 153 quoting CAS 2013/A/3327, Cilic v. International Tennis Federation, Award of 11 April 2014, paras 71 & 76 (references omitted).

  152. 152.

    Ibid., para 153 quoting CAS 2013/A/3327, Cilic v. International Tennis Federation, Award of 11 April 2014, para 76 (references omitted).

  153. 153.

    Ibid., para 154, quoting CAS 2005/A/872, UCI v. Fernandez, Award of 30 January 2006, para 5.7.

  154. 154.

    Ibid., para 155.

  155. 155.

    Ibid., para 157.

  156. 156.

    Ibid., para 158(i).

  157. 157.

    Ibid., para 158(ii).

  158. 158.

    Ibid., para 158(iii).

  159. 159.

    Ibid., para 156(iii).

  160. 160.

    Ibid., para 158(iii).

  161. 161.

    Ibid., para 158(iv).

  162. 162.

    Ibid., para 159.

  163. 163.

    Ibid., para 160.

  164. 164.

    Ibid., para 161.

  165. 165.

    Id.

  166. 166.

    Ibid., para 164.

  167. 167.

    Id.

  168. 168.

    Id.

  169. 169.

    Id.

  170. 170.

    Ibid., para 17.

  171. 171.

    CAS 2016/A/4643, Sharapova v. International Tennis Federation, Award of 30 September 2016, see our comments on this award, and in particular on the issue of the qualifications of a person delegated with the task to help an athlete fulfil his or her anti-doping duties in Rigozzi et al. 2017, pp. 27–41.

  172. 172.

    In particular, the CAS panel re-emphasized in this context, the Players’ failure to enquire as to the nature of the substance despite the fact they all signed a consent form, their reliance on Mr. Dank and Mr. Robinson, and their “wholly unfounded” assumption that Dr. Reid was aware of the program.

  173. 173.

    See for a related discussion, Rigozzi et al. 2016, pp. 108–109.

  174. 174.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 164.

  175. 175.

    Rigozzi et al. 2016, p. 109. For another example, see the media reports on the Michael Phelps’s use of Cannabis, as one example: Karen Crouse, Phelps Apologizes for Marijuana Pipe Photo, New York Times, 1 February 2009. http://www.nytimes.com/2009/02/02/sports/othersports/02phelps.html?_r=0. Accessed 31 May 2017.

  176. 176.

    CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016, para 155(ii) and (iii).

  177. 177.

    As of the date of publication of this Comment, no CAS award involving Mr. Dank has been published on the CAS website, however, there were reports that WADA appealed the case against Mr. Dank to the CAS. The Age, WADA appeals Stephen Dank anti-doping tribunal ruling, 2 June 2015, http://www.theage.com.au/afl/afl-news/wada-appeals-stephen-dank-antidoping-tribunal-ruling-20150601-ghel3x.html. Accessed 1 June 2017.

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  1. Bird & Bird, London, UK

    Marjolaine Viret

  2. School of Law, University of Neuchâtel, Avenue du 1er-mars 26, 2000, Neuchâtel, Switzerland

    Emily Wisnosky

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    Antoine Duval

  2. Faculté de droit, Université de Neuchâtel, Neuchâtel, Switzerland

    Antonio Rigozzi

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Viret, M., Wisnosky, E. (2017). CAS 2015/A/4059, WADA v. Thomas Bellchambers et al., Award of 11 January 2016. In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2016. Yearbook of International Sports Arbitration. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/15757_2017_19

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